Over the past twenty years, one of the most rapidly growing areas of litigation in the United States has been in the employment area. Relatively recent changes in the law have created new causes of actions available for employees to sue their employers. Some of the most frequent suits are those based on race, sex or other discrimination, sexual harassment, violation of the family medical leave act, retaliation, and violation of laws against age discrimination.

Jury awards relating to employee lawsuits usually reach well into the six figures. Moreover, companies who face such lawsuits are required to hire legal counsel to defend them, and litigation costs have soared. The financial burden associated with employee practices litigation is a significant risk for any business, but it is especially risky for a small business. A lawsuit by a disgruntled ex-employee could put a small business’ very existence at risk.

The insurance industry has responded to this significant increase in employee litigation by offering insurance coverage to businesses that protect them from the financial consequences of these lawsuits. This type of coverage is known as employee practices liability (“EPL”) insurance. These policies provide coverage for most alleged employment practices violations, including discrimination, harassment, and wrongful termination. The availability of employment practices liability coverage now enables small and medium-sized businesses to insure themselves against the consequences of lawsuits from former employees.

Small and medium-sized businesses that are considering purchasing EPL insurance coverage have a variety of choices for coverage. Some policies provide coverage for a wide spectrum of risks, while other policies are more narrowly written. Employers should closely examine the policies to determine exactly what is and what is not covered, and how the scope of coverage relates to the business in which those employers are engaged. Employers should also take note of policy provisions regarding selection of counsel, and the appropriate claims reporting procedure.

For most employers, having EPL insurance coverage is every bit as important as having comprehensive general liability insurance – both types of insurance protect and insulate an employer from the costs of litigation. So long as an employer does its homework and selects the policy most appropriate for that employer, purchasing EPL insurance is a smart business decision.

Does an actress have a copyright interest in her performance in a film? The answer to that question is “yes”, at least according to a recent decision by the Ninth Circuit Court of Appeals in California.

In Garcia versus Google, Inc., et al., 743 F.3rd 1258 (9th Cir. 2014), the plaintiff, Cindy Lee Garcia, had sought a preliminary injunction in district court requiring Google to remove from YouTube a film in which she had appeared as an actress, claiming that the posting of the video infringed her copyright in her performance. Ms. Garcia had originally been approached to appear in the film, which she was advised would be entitled “Desert Warrior”. In fact, “Desert Warrior” was never made into a film; instead, Ms. Garcia’s performance was used in an anti-Islamic film entitled “Innocence of the Muslims”.

The inflammatory content of “Innocence of the Muslims” resulted in protests from many in the Muslim community, and death threats were directed against Ms. Garcia. Her request for a restraining order from the district court was denied, because the judge felt that she had failed to demonstrate a likelihood of success on the merits, and she failed to show that the requested preliminary relief would prevent any alleged harm.

The Ninth Circuit disagreed. In writing the opinion for the panel, Chief Judge Kozinski found that an actor’s performance “. . . when fixed, is copyrightable if it evidences ‘some minimal degree of creativity. . .’ No matter how crude, humble or obvious it might be.” Garcia, page 8. The panel further found that Ms. Garcia was neither an employee of the film producer, nor was she an independent contractor who had transferred her interests to the filmmaker in writing.

In a strongly worded dissent, Judge Smith noted that to be eligible for protection under the copyright act, an interest must be “an original work of authorship fixed in any tangible medium of expression. . .” 17 USC section 102 (a). Judge Smith argued that Ms. Garcia did not have a copyright interest in her role in the film because: (1) her performance did not constitute a work; (2) she was not an author, as contemplated by the copyright act; and (3) her acting performance was not fixed, in that it was too personal. Garcia at page 21

The implications of this holding are significant, especially in the film industry. Could this holding open the door for similar claims by a multitude of actors who also claim copyright interests in their performances? Could an actor with such a claim to a copyright interest obtain a restraining order because that actor did not like the way the final product was edited or filmed? And, could others who have creative input into filmmaking, such as musicians, or cinematographers, claim copyright protection of their “performances”?

Needless to say, many in the film industry are upset with this decision. Do not be surprised to see Google fight to get this holding reversed.

House bill 1060 has been passed and was signed by the President of the Louisiana Senate. It was sent to the Governor for executive approval. The proposed law, which we assume will be signed by Governor Jindal changes the law as follows:

A. Current law provides that a homeowner’s policy may be cancelled or non-renewed due to two or more claims being made within a period of three years. The proposed law would require that two claims are made within a continuous three year period in five years preceding the policy renewal date.

B. Current law allows an insurer to cancel its policies when it ceases writing homeowner’s insurance in Louisiana, without penalty. The proposed law would require an authorized property, casualty and liability insurer that withdraws from the homeowner’s insurance market in Louisiana to abstain from issuing policies for a minimum of five years beginning from the date of the discontinuation of the last homeowner’s policy not so renewed. There is a provision for the Commissioner of Insurance to allow reentry into the market prior to the expiration of the five year period. A similar provision is proposed for approved unauthorized insurers.